Opinion: Bonds been Barry Barry bad to me

‘It’s infuriating, when you read the indictment,’ Geragos said. ‘Is there anything in that indictment that wasn’t known a year ago? If that is the case, clearly, putting Greg in for a year was not only punitive, but was misleading the court in that (federal prosecutors) said his testimony was indispensable for the investigation. ‘All of sudden, it was, ‘I hope your year was therapeutic.’’ [...] ‘There has to be some kind of redress for this,’ Geragos said. ‘The whole thing is a crock of s-. He’s never said word one.’

Once the subpoena is served upon a person, his constitutional right to remain silent essentially evaporates. Consider the legal minefield that awaits a grand jury witness: * It is a federal crime for a person who has been served with a subpoena to decline to appear before the grand jury. In fact, this is a crime for which a person can be punished ‘summarily,’ which means a judge can mete out a jail sentence without a jury trial, bench trial, or any trial at all. * Once a federal grand jury witness makes an appearance, he must answer the questions that are posed by the prosecutor. Most laypeople are shocked to discover that there is essentially no limit to the types of questions that can be put to witnesses. To take one prominent example, during the scandal-plagued Clinton administration, federal prosecutors demanded that Marcia Lewis reveal to a grand jury any information about sexual liaisons that her daughter, Monica Lewinsky, had confided to her. Of course, most cases receive no publicity whatsoever, but it is not uncommon for prosecutors to demand that parents and siblings reveal information about close relatives. Any witness who appears before the grand jury but declines to answer questions may be summarily jailed without a trial if a judge determines that a valid claim of privilege does not apply. * Witnesses who have been forced to appear and forced to testify ordinarily know that perjury is a crime. But unsophisticated individuals or individuals who do not speak English very well and are unfamiliar with American culture may not fully appreciate the ramifications of their statements. Lying to a federal grand jury is a felony under federal law. Moreover, even intelligent laypersons may not be aware of the fact that prosecutors sometimes deliberately use the grand jury proceeding to lay what has come to be known as a ‘perjury trap.’ The trap works like this: First, the witness is led to believe that the government is investigating some other person, which has the effect of psychologically disarming the individual. Next, with the witness’s guard down, the prosecutor asks dozens of boring and harmless questions about a variety of subject matters. After an hour of tedious questioning, the prosecutor will raise another, seemingly minor subject, but it is an item that the prosecutor knows will be awkward or embarrassing to the witness. The witness denies (or is not fully candid about) the seemingly minor matter and is then subsequently indicted for ‘lying to a federal grand jury.’ * Witnesses usually have some general familiarity with their right to invoke the Fifth Amendment and to refuse to answer questions that might incriminate them. However, the law does not permit the witness to determine what is a valid invocation of his constitutional right. The prosecutor has the power to drag a witness from the grand jury room to a regular courtroom to see a judge. The judge has the power to overrule the witness and compel him to answer the prosecutor’s questions. If the witness declines, he can be summarily jailed. * Witnesses are also expected to know precisely the right moment during compulsory examination to invoke their right against self-incrimination. If a witness is too cooperative and answers a few questions on a particular topic, but then chooses to invoke his constitutional right against self-incrimination, the prosecutor can argue that the ‘door has already been opened’ and that the witness has ‘waived’ his right to maintain silence. If the witness declines to answer additional questions in such circumstances, he can be summarily jailed. This explains why some attorneys advise their clients to invoke the Fifth Amendment in response to every single question. Witnesses who do not have the benefit of legal counsel in such situations will be bewildered by this ‘sorry, you just gave up your rights’ procedure and will likely find themselves indicted—either for their silence or for their judicially mandated ‘confession.’ * Federal prosecutors have the power to separate witnesses from their attorneys, which, of course, makes the legal minefield even more treacherous. It is standard practice to prevent grand jury witnesses from consulting with attorneys during the compulsory examination. Unlike witnesses who appear before legislative committees, or depositions in civil litigation, witnesses are not allowed to have their attorneys accompany them into the grand jury room and give cautionary advice as questions are posed. Given this body of law, is it any wonder that the grand jury has been described as ‘the most powerful weapon in law enforcement’s arsenal’? Judge Learned Hand once noted that, except for torture, ‘it would be hard to find a more effective tool of tyranny than the power of unlimited and unchecked ex parte examination.’ And yet that is precisely what can go on in the grand jury room in modern America. Behind the façade of the ‘grand jury process,’ federal prosecutors and FBI agents enjoy enormous leverage over individual citizens. That leverage allows them to detect more crimes and punish more criminals, but such powers also allow the government to bypass the constitutional prohibition on self-incrimination and jail people who are perceived to be ‘uncooperative.’